Judge voids NLRB rule on union postings

A Charleston judge has ruled that the National Labor Relations Board cannot force private businesses to post notices informing workers about their rights to join or form a union.

Chief U.S. District Court Judge David C. Norton said Friday that the requirement exceeds the federal agency's powers, writing, “There is not a single trace of statutory text that indicates Congress intended for the board to proactively regulate employers in this manner.”

The ruling favored a group of pro-business plaintiffs led by the U.S. Chamber of Commerce, which in September filed a lawsuit in Charleston challenging the requirement.

Already postponed twice, the rule is supposed to take effect April 30.

Norton's decision does not mean the issue has been put to rest. In a separate but similar lawsuit, District Court Judge Amy Berman Jackson in Washington, D.C., found that the NLRB does have the power to require the union notices.

“The notice-posting rule is a reasonable means of promoting awareness,” she wrote.

An appeal will likely be required to resolve the differing legal opinions.

Lawyers from both sides told The New York Times they are reviewing Norton's decision to see whether it applies only to employers in South Carolina or across the country.

“Our attorneys are studying the decision and deciding what our response will be,” NRLB spokeswoman Nancy Cleeland told the newspaper.

The NLRB is a controversial agency in mostly union-free South Carolina, where the board accused Boeing Co. in 2010 of unfair labor practices and sought to move its new 787 aircraft assembly line from North Charleston to the Seattle area. The dispute was settled last year.

Meanwhile, the Washington, D.C.-based U.S. Chamber of Commerce picked Charleston as the battleground for its own NLRB challenge in September, saying it felt that it had a good chance to win the case in South Carolina.

A chamber official at the time called the agency's proposed rule “nothing more than labor regulation run amok. Adding insult to injury, the board's new rule violates the First Amendment by forcing employers to use their own resources to post the NLRB's pro-union message on the company's own property.”

The workplace notices would have to be posted in a conspicuous location.

They would explain the rights employees have under the National Labor Relations Act, such as forming or joining a union, distributing union literature, collective bargaining and picketing. The posters also show examples of illegal union conduct.

Norton noted in his 31-page ruling Friday that for the 77 years since the National Labor Relations Act was passed, the NLRB “has been nearly unique among federal labor agencies in not requiring employers to post a general notice of employee rights in the workplace.” He went on to say that in that late 2010, the board “changed course” and proposed the new regulation. The rule was finalized in August.

Business groups and right-leaning lawmakers have argued that the NLRB has taken a pro-union stance since President Barack Obama took office more than three years ago.

“Perhaps the Board should have heeded the admonition of Simon and Garfunkel: ‘And no one dared / disturb the sound of silence,'” Norton wrote, referring to the duo's 1966 hit “Sound of Silence.”

Reach John P. McDermott at 937-5572.